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In 2006, Ruiz applied for a job at the Gap and was required to provide his Social Security number. A vendor hired by the Gap for recruiting stored Ruiz’s information on a laptop which, as luck would have it, was stolen.

Though he was not (at least yet) the victim of identity theft, Ruiz sued the Gap for negligence. The Gap moved for judgment on the pleadings which the court also treated as a motion to dismiss for failure to state a claim. The court denied the motion to dismiss as to negligence (and granted the motion as to claims for bailment, unfair competition and violation of the California constitutional right to privacy). But Ruiz’s standing to bring the claim was tenuous.

The Gap had argued that Ruiz lacked standing. His only alleged harm was that he was at an increased risk for identity theft. The court’s analysis of the Gap’s objection to standing focused on the first element of the Lujan test (Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)), namely, whether Ruiz’s alleged injury was “concrete and particularized.”

The Ninth Circuit has held for allegations of future harm to confer standing, the threat must be credible, and the plaintiff must show that there is a “significant possibility” that future harm will ensue. The Lujan case (which is the leading Supreme Court authority on standing) essentially creates a “benefit of the doubt” for plaintiffs at the pleading stage — a court is to presume that general allegations embrace those specific allegations that are necessary to show a particularized injury. Ruiz’s general allegations of the threat of future harm were thus sufficient to confer standing.

But the court gave a warning to Ruiz that the threshold of standing does not apply only to pleadings, but is an indispensable part of a plaintiff’s case throughout. In other words, he’ll have to come up with more later to keep the case in court.

So in denying the motion to dismiss the negligence claim, the court incorporated its standing analysis. The only issue on the point of negligence was whether Ruiz had suffered an injury. Ruiz’s general allegations were sufficient.

Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).